Dye v. Beaver Creek Church

• Citation: 26 S.E. 717,48 S.C. 444
• Parties: DYE et al. v. BEAVER CREEK CHURCH et al.
• Decision Date: 12 March 1897
• Court: South Carolina Supreme Court

26 S.E. 717

48 S.C. 444

DYE et al. v. BEAVER CREEK CHURCH et al.

Supreme Court of South Carolina

March 12, 1897

Appeal from common pleas circuit court of Fairfield county; Ernest Gary, Judge.

Action by Thomas E. Dye and others against the Beaver Creek Church and others to contest a will. From a judgment in favor of defendants, plaintiff's appeal. Affirmed.

The decree of the trial judge, and plaintiffs' exceptions follow:

Decree.

"John Dye, of Fairfield district, by his will, executed on the 14th day of December, 1854, devised as follows 'First of all, my lawful debts to be paid out of my estate, and all the balance of my personal and real estate I give and bequeath to my beloved wife, Tabitha Dye, for her to dispose and live on during her lifetime; and if there be anything at her deceast after left after her deceast and burial, I give and bequeath to the Beaver Creek Church, for poor children, for their tuition. I hereby appoint my beloved wife, Tabitha Dye, and Nathaniel Davis, executors to this my last will and testament.' The will was probated on the 12th day of January, 1855, and the wife of testator, the said Tabitha Dye, kept possession of and enjoyed the property devised in said will till her death, in the year 1890. The testator left no ancestors nor lineal descendants, but left surviving him six brothers and sisters, two of whom died unmarried, and the plaintiffs are the only surviving heirs at law of the said testator. The object of this suit is to have the land partitioned amongst the plaintiffs, and for judgment against the defendants for the sum of $100, as damages for withholding the possession from the plaintiffs.

"The plaintiffs contend that the limitation in said will is void for three reasons, as follows: First, because there is no trustee or trustees named in said will, and the use not being clearly defined, must necessarily fall; second because Beaver Creek Church, being an unincorporated society cannot take, hold, or acquire property by devise; and, third, because the devise is void for uncertainty.

"There is no dispute as to the facts of the case. The defendants are in possession of the land mentioned in said devise. If the limitation in said will is void, then the heirs at law are entitled to the partition. So there are only cold questions of law presented for determination, and, I am free to admit, have perplexed me no little. My opinion has not been settled, but has vacillated from plaintiffs to defendants. My first impression was that the limitation was void for uncertainty, and as being too indefinite. But, upon a more careful consideration of the authorities, I am convinced that devises to charitable uses are not to be measured by the same rule of construction as similar devises for other purposes, and which would be void for vagueness or uncertainty. I suppose the reason is that the object and effect of every charitable bequest is to confer a public benefit, else it would be no charity. It is a charity that moves from the individual to the masses, like a stream flowing to the sea. It is a return of a gift to the giver, for the labors of all contribute to the prosperity of each. It seems to me that the case of Attorney General v. Jolly, 1 Rich. Eq. 99, is directly in point, and is conclusive of all three of the grounds upon which it is sought to declare this devise void. It is true, the authorities are not uniform, by any means, upon this question, but, on the contrary, they differ every materially. So I prefer to rest my opinion upon the authorities of our own state. The devise in Jolly's Case, just cited, was as follows: 'I give, devise, and bequeath the whole of my estate, both real and personal, to my wife Elizabeth Burnett, during the term of her natural life. After her death, I give, devise, and bequeath the whole of my said estate, both real and personal, to the Methodist Church of which she may be a member at the time of her death, to be appropriated to the uses and purposes which the conference may deem most advantageous for said church; more especially for the support of Sunday schools, for the purchase of Bibles and religious tracts, and the distribution of the same among the destitute, and for the support of missionaries.' There the devise was sustained by an undivided court. Chancellor Harper, in delivering the opinion of the court of errors, says: 'This is a case in which I take great pleasure in reversing my own judgment, and it is, perhaps, fortunate that the decision has been delayed until the subject has undergone so thorough an investigation as it has done in the cases of Sarah Tayne's Will, determined in the circuit court of the United States for Pennsylvania by Mr. Justice Baldwin, and in that of Vidal v. Girard's Ex'rs, in the supreme court of the United States (2 How. 127). The extent of learning and laborious research with which those cases were examined would make it a matter of affectation to go over the same ground, and comment on the same authorities.' In discussing the point that there was no trustee named or appointed in the will, he says: ' I understand these principles to be settled by the decisions referred to. If there be a bequest to a society, by that name, the individuals, composing it, who may be identified by evidence, take as natural persons, in the same manner as if each had been particularly named; and that, if it be upon a lawful trust, they will be compelled to execute it. There was some difficulty in England, from the circumstance that a gift of land, made in such terms, gave only a life estate, for want of words of inheritance. But with us, where no words of inheritance are necessary, I do not perceive why a society by that name should not take the fee. I suppose that such an estate would not come within our act of 1791, providing for the distribution of intestates' estates, but that the descent must be according to the common law. Justice Baldwin observes that the incorporations were originally established to enable

religious societies, the individuals [26 S.E. 719] composing which were regarded as men dead in law, and incapable of taking as natural persons, to take in succession. There was never need of a charter to enable societies to purchase chattels. It is decided that devises to charitable uses will be established and enforced when similar devises for other purposes would be void for vagueness or uncertainty. *** In some of these cases the charities were not only of an uncertain and indefinite nature, but, as far as we can gather from the imperfect statements in the printed records, there were also cases where either no trustees were appointed, or the trustees were not competent to take. They show very conclusively, also, that persons having only a general and indefinite interest, such as the complainants have as members of the religious society, may sustain the will and enforce the use.' With reference to the point that there is no trustee named in the will, chancellor Harper concludes: 'It is the well-known and universal rule of the court that if the object of the trust be lawful, and sufficiently specific and definite to enable the court to execute it, it shall never fail for want of a trustee.' As already stated, I think the plaintiffs are precluded by the reasoning in the above case, and they are therefore not entitled to the relief demanded in the complaint. It is for that reason ordered and adjudged that the complaint of the plaintiffs be dismissed."

Exceptions.

"(1) For that his honor erred in not holding and adjudging in this case that the devise to the Beaver Creek Church in the will of John Dye, deceased, was void for vagueness, remoteness, and uncertainty therein as to objects and beneficiaries. (2) For that his honor erred in not holding and adjudging that, as no trustee was named in said will, the language therein contained was too indefinite, uncertain, and unspecific upon and from which the court could declare the use and trust, and enforce the same itself, or through a trustee appointed for that purpose. (3) For that his honor erred in not holding that the court had no power to appoint a trustee in such cases unless there was in the first instance a clear, definite, and specific use and trust declared, which was capable of being enforced by the court, and that in the said will there was no such use or trust declared. (4) For that his honor erred in not holding and adjudging that the Beaver Creek Church, being an unincorporated society, was incapable of taking and holding real estate by devise, unless the same was devised to promote the uses, purposes, and objects of such society, and that the devise in said will to said church was not for such uses, purposes, and objects as those for which said church was organized. (5) For that his honor erred in not holding and adjudging that said devise could not be sustained as a devise to charitable uses, because of uncertainty as to the amount of the property devised. (6) For that his honor erred in this case in holding and adjudging that the devise in said will to the Beaver Creek Church was sufficiently clear, definite, and certain to enable the court to give it effect and enforce it as a devise to charitable uses. (7) For that his honor erred in holding and adjudging in this case that it was not necessary to the validity of the trust and devise to the Beaver Creek Church that a trustee should have been named and appointed in the will, and that the use and trust therein declared were sufficiently definite and certain to enable the court to enforce it. (8) For that his honor erred in holding and adjudging that the case of Attorney General v. Jolly, 1 Rich. Eq. 99, was applicable to the facts of this case, that it was 'conclusive of all three of the grounds upon which it is sought to

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